Michael K. McKelvey

The moving parties sought leave to appeal a decision of the motion judge.

The Divisional Court dismissed the motion, finding that the motion judge was correct in concluding that the statement of claim in the fraudulent conveyance action was not before her at the hearing.

Costs were awarded to the responding parties for a transcript.

The moving parties sought leave to appeal a decision and costs endorsement of the lower court.

The Divisional Court dismissed the motion for leave to appeal.

Costs of $5,000 for the leave to appeal the costs award and $5,000 for the leave to appeal the judgment were awarded to the responding parties.

The moving party sought leave to appeal a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $4,160.

The moving parties brought a motion for leave to appeal a costs order made by Agarwal J. on May 1, 2025.

The Divisional Court dismissed the motion for leave to appeal.

As no parties filed submissions on costs, no costs were ordered.

The appellants appealed a decision awarding damages against them personally for oppressive conduct.

They argued the respondent lacked standing, the partnership agreement barred the application, and the application judge lacked authority to award damages against individuals.

The Divisional Court dismissed the appeal, finding the first two issues were improperly raised for the first time on appeal, and relying on Supreme Court precedent to affirm that personal liability can be imposed on directors for oppressive conduct.

The appellants sought to file affidavits on appeal that were not before the application judge.

The application judge had previously given no weight to one appellant's late-filed evidence and proceeded without evidence from the other appellant, who failed to file materials despite a court order.

The Divisional Court refused to admit the fresh evidence, noting that the appellants did not appeal the application judge's evidentiary rulings, did not bring a formal motion to admit fresh evidence, and failed to satisfy the Palmer test for admitting fresh evidence on appeal, specifically the due diligence requirement.

The applicants brought a motion to continue a Mareva injunction that had been granted ex parte by Justice Mathai on May 16, 2025.

The injunction was sought in connection with an alleged fraudulent conveyance of a commercial property (the Upper James Property) and a breach of an agreement for purchase and sale.

The respondent provided evidence explaining the business rationale for the property transfer and subsequent sale, including financing constraints and the need to relocate the business to a more affordable location.

The court found that the respondent's evidence, if accepted, demonstrated that the transactions were not motivated by asset dissipation or an intent to avoid judgment.

The court discontinued the Mareva injunction, finding no compelling evidence of fraudulent conveyance and noting the significant hardship the injunction was causing to the respondent's business and family.

The decision addresses a dispute over a jury verdict in a civil action brought by Andrew Sanayhie against the Durham Regional Police Services Board and two officers.

The plaintiff alleged wrongful arrest, excessive force, and malicious prosecution.

The jury's initial verdict was inconsistent, awarding damages for malicious prosecution despite finding no malice.

The court sent the jury back for clarification, and the second verdict found malice and again awarded damages.

The court held that it was appropriate to seek clarification from the jury before discharge, dismissed the defendants’ motion for judgment in their favour, and entered judgment for the plaintiff on malicious prosecution and legal expenses.

The applicants sought damages for breach of contract after the respondent developer cancelled an agreement of purchase and sale for a preconstruction condominium unit.

The respondent argued that the applicants had waived the strict timelines in the Tarion addendum and that two of the applicants had bound the third to an amending agreement.

The court found that while the applicants were partners who could bind each other, the doctrine of waiver did not apply to extend the early termination date.

However, the court held that the contract's limitation of liability clause was enforceable, restricting the applicants' remedy to the return of their deposits with interest.

The court considered the appropriate scale and quantum of costs following a successful summary judgment motion for wrongful dismissal.

The plaintiff, John Teljeur, sought substantial indemnity costs, arguing the defendants' conduct was egregious and deserving of censure.

The court found the employer's failure to pay owed amounts and comply with statutory obligations justified an award of substantial indemnity costs, but made modest reductions for certain litigation steps.

The final award was $24,000 in substantial indemnity costs, inclusive of disbursements and HST.

The court considered whether a key police witness, Officer Jonathan Hood, should be permitted to testify virtually due to psychological health concerns.

The plaintiff objected, arguing in-person testimony was necessary for the jury to assess credibility and demeanor.

The court reviewed the relevant Rules of Civil Procedure and expert evidence from Dr. Christine Hansen, ultimately concluding that the balance of convenience favoured allowing virtual testimony in light of Officer Hood’s diagnosed PTSD and related conditions.

The Crown sought a dangerous offender designation and an indeterminate sentence for the defendant, Jason Perrault, following his guilty pleas to multiple offences including assault with a weapon, which involved intimate partner violence.

The court found that Perrault met the criteria for a dangerous offender designation due to a pattern of repetitive violent behaviour and a likelihood of causing severe psychological damage.

However, based on expert psychiatric evidence and the defendant's expressed commitment to change, the court determined that a determinate sentence of 10 years, with credit for pre-sentence custody, followed by a 10-year long-term supervision order with strict conditions, would adequately protect the public, rather than an indeterminate sentence.

The defendant brought a motion seeking to compel the plaintiff to attend a second psychiatric medical examination and to extend the time for serving the expert report.

The court dismissed the motion, finding that a change in counsel and dissatisfaction with a previously retained expert's communication style at a prior trial were not sufficient reasons to order a further examination.

The court emphasized that trial fairness did not require a new examination, especially given the potential for delay to the impending trial date.

The appellant appealed a trial decision regarding the interpretation of a Share Purchase Agreement and the calculation of an earn-out provision (Target EBITDA).

The trial judge had found that the respondents constructively dismissed two key salespeople and engaged in oppressive conduct, reducing the Target EBITDA accordingly, but refused to further reduce it by a settlement amount the respondents received for a stolen book of business.

The trial judge also refused to adjust the Lower Threshold in the earn-out formula.

The Divisional Court dismissed the appeal, finding no error in the trial judge's contractual interpretation or his crafting of the oppression remedy, which properly validated the reasonable expectations of the parties as set out in the agreement.

A cross-appeal on costs was also dismissed.

The appellant condominium corporation appealed a Condominium Authority Tribunal decision ordering it to produce copies of a statement of claim and statements of defence to a unit owner.

The appellant argued the records were protected by litigation privilege and exempt from disclosure under section 55(4)(b) of the Condominium Act.

The Divisional Court dismissed the appeal, holding that exchanged pleadings are public documents that do not attract litigation privilege, and the Tribunal properly exercised its discretion to order disclosure.

This criminal trial concerned charges of sexual assault and touching for a sexual purpose against the defendant, the complainant's stepfather.

The case hinged on the credibility and reliability of the complainant's and the accused's evidence, as there was no independent corroboration.

The court found significant inconsistencies in the complainant's testimony, particularly between her initial police statement and later statements/trial evidence, and accepted a defence witness's evidence that the complainant had expressed a desire to fabricate allegations to remove the accused from the home.

Despite concerns about the accused's credibility due to his criminal record and poor judgment, the inconsistencies in the complainant's evidence raised a reasonable doubt, leading to an acquittal on all charges.

The applicant nurse sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Nurses of Ontario, which required her to complete a remediation program and receive a caution for working for two public health employers concurrently during the same shifts.

The applicant argued she received ineffective assistance of counsel and that the decision was unreasonable.

The Divisional Court dismissed the application, finding no factual basis for the ineffective assistance claim and concluding that the ICRC's decision was reasonable and justified based on the record.

The moving party sought leave to appeal an order of Faieta J. dated July 17, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The defendant was found guilty by a jury of sexual assault, two counts of assault, and uttering a death threat.

This decision outlines the reasons for sentencing.

The court considered significant aggravating factors, including intimate partner violence, the severe impact on the victim, and the defendant's extensive criminal record.

Mitigating factors included a difficult upbringing and credit for previous convictions.

The court applied the principles of sentencing under the Criminal Code, notably addressing and abandoning the "Smith range" for sexual assault sentences in favour of a higher range as per R. v. A.J.K. The defendant was sentenced to 4.5 years imprisonment for sexual assault, with concurrent sentences for the other charges, and various ancillary orders were imposed.

The plaintiff brought a motion to prohibit Dr. John Bohnen from testifying as an expert for the defence, alleging issues with his expert reports (unsigned, invalid contact information) and potential bias due to his past relationship with a defendant and frequent retention by the defence law firm.

The court applied the two-stage test for expert admissibility from *White Burgess* and *Mohan*.

The judge found that the initial failure to sign a report was not a material omission, the contact information provided was valid, and the expert's professional relationships did not demonstrate a lack of independence sufficient to disqualify him.

The motion was dismissed, with the court concluding that the issues raised by the plaintiff pertained to the weight of the expert's evidence rather than its admissibility.